Plaintiff's Submissions
69The first and principal ground upon which the plaintiff relied to obtain the relief sought, was that the Review Panel had undertaken its exercise without regard to the requirements of the legislation because it had not made any fresh assessment of the plaintiff at all, but had in fact relied on the assessment made by the original Assessor, Dr Jager, and had only addressed the errors of which complaint had been made by Allianz in its application to the Proper Officer for a review.
70That the obligation of the Review Panel is to conduct a fresh assessment is clear. I have referred to the legislation and authorities which require that.
71The plaintiff points to the extracts of the Reasons, which I have set out above, and in particular that the structure and methodology followed by the Review Panel as demonstrating that it addressed only the three errors nominated by the insurer in its application for a review. In all other respects, it simply adopted the report of Assessor Jager.
72In considering this submission, it is necessary to keep in mind that in reviewing the Statement of Reasons of the Review Panel, the Court is not dealing with a legal judgment. It must consider what the standard required is of the written reasons dictated by the statute. In my view, the following statement by the High Court of Australia in Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 at [55] is apt to describe the obligation of the Review Panel in these circumstances:
"The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law and the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
73Counsel for Allianz submitted that the reasons of the Review Panel were adequate and displayed no error on their face. Counsel pointed out that the mere adoption by a review panel of an assessment below, or the mere agreement with the reasons expressed by the single assessor, does not of itself disclose an error in process or procedure.
74That may be so. However, what is required of the Review Panel by the Act is that it conducts its own assessment of the extent of whole person impairment of the claimant. In order so to do, in accordance with the Guidelines, it must engage in an exercise of clinical judgment. It does so on the basis of the claimant's history as contained in all of the documents with which the Review Panel is provided. These must include the documents given to the primary assessor, and may include additional documents if the Proper Officer so determines. It is also provided with the primary assessor's report. This is a report which also contains history and the results of a clinical examination, and also contains the expert opinion of a properly qualified specialist who has himself or herself, engaged in a full assessment, exercised their clinical judgment and come to a determination of whole person impairment.
75Based upon that material, which consists entirely of factual material or opinions of experts, the Review Panel must determine whether a re-examination of a claimant is appropriate.
76The plaintiff submits that a re-examination is in all practical senses, essential in all cases of review. The terms in which Guideline 1.20 are expressed, see [44] above, would support this submission. I do not have to determine that question on such a broad basis. There may be circumstances, at least that one can envisage, where an assessment of whole person impairment would not necessarily be advanced by an examination or consultation with a claimant. The probabilities are that such circumstances will be rare or unusual. But again, I do not have to determine that question.
77Here, the Review Panel had to determine whether the plaintiff's psychological injuries gave rise to permanent impairment and if so, to what extent. It had to do so as at the date of its assessment. It was not determining the extent of whole person impairment, if any, at some earlier date, but rather as at the date of its assessment. In circumstances where the PIRS, to which it was necessary to have regard in accordance with the Guidelines, related to impairment in the identified areas of function, it was not possible, in the circumstances here, for the Review Panel to undertake an assessment and form its opinion without such a consultation and examination.
78This is not a separate ground for setting aside the Certificate. However, it does assist in understanding the approach which the Review Panel took. It decided it did not need to examine the plaintiff. The statement by the Review Panel under the heading "A. Evidence Considered", which I have set out at [29] above, makes it plain that in determining not to re-examine the plaintiff, the Review Panel did so on the basis that its task was limited to reviewing error on the part of the primary assessor. This statement helps to inform the determination of how the Review Panel approached the whole of its task.
79Its report in substance and effect identified the three errors complained of by Allianz in its submissions to the Proper Officer, considered those areas of complaint upon the basis of the material which it had, which by that stage was at least six months old, made no further enquiries as to whether the position of the claimant had changed and made no further enquiries as to what the claimant's present employment circumstances were, but simply made a determination on the three issues "on the papers".
80In my view, the Statement of Reasons of this Review Panel demonstrates clear error as to the nature of the exercise in which they were engaged.
81I am conscious, as Giles JA pointed out in McKee at [38], a passage upon which Allianz did not rely, that the consideration by the Review Panel of some aspects of the matter referred to them might be brief, and I am also conscious that in principle there would be no error if, having conducted its assessment, it may arrive at a similar assessment for the same or similar reasons as expressed by the primary assessor. If so, the Review Panel should be able to announce its conclusion and to indicate that it so concluded for the same reasons as those expressed by the primary assessor. That would not be a failure of their obligation to conduct an assessment afresh, but would rather be indicative of the exercise of their professional judgment.
82However, as the legislation requires, they must conduct the assessment as a whole and cannot limit the conduct of their assessment to the matters raised in the insurer's submissions to the Proper Officer. Notwithstanding what seems to be a routine incantation at the start of the Certificate and reasons that they were making an "assessment afresh", in substance, that is what the Review Panel did here.
83In my view, they fell into error. The error is jurisdictional and is an error on the face of the record. The plaintiff is entitled to relief on this ground.
84The plaintiff also submitted that the Review Panel had failed to accord procedural fairness to her because it determined that it would not accept what Assessor Jager had found to be an accurate history from the claimant, and would prefer its own inferences of fact to the history recounted by the plaintiff.
85In particular, the plaintiff's submissions draw attention to the material which I have set out above at [70]. There, so it is submitted, the Review Panel reached a conclusion opposite to that reached by Assessor Jager, and in a way which substantially reflected the insurer's submissions to the Proper Officer. The insurer had submitted that:
"... the claimant would not have been able to continue in her employment given the nature of her role if she suffered from a moderate impairment in the category of Concentration, Persistence and Pace. ... The insurer notes that whilst a reduction in concentration is concluded by Assessor Jager, these symptoms were not reported by the claimant during the assessment."
86The reasons of the Review Panel make it plain that it substantially accepted this submission and implied that the teaching for the course upon which the plaintiff was engaged, would have required the ability to focus on intellectually demanding tasks for up to 30 minutes. The difficulty with this conclusion, which differs from that reached by Assessor Jager, is that there was no factual basis upon which the Review Panel could have been informed as to the work duties which the plaintiff was actually undertaking, at the time of its own assessment. They could not be informed of those duties because they received no additional documents and dispensed with an examination of the plaintiff at which they could have enquired about these matters.
87There is a significant difference between a job description and the duties a person is actually engaged upon. This paragraph also indicates that the Review Panel reached a conclusion not based on any fact identified by any party or any history identified by any party, but rather one which they had assumed to themselves.
88I have addressed above the standard of procedural fairness which is required.
89Having regard to the significance of this particular element in the Review Panel's conclusions, to discharge that obligation of procedural fairness, the Review Panel had to cause enquiries to be made of the claimant as to what her duties actually involved. Those enquiries could have been made by the Review Panel conducting an examination at which the issue was discussed with the claimant. It is possible that they may have instituted such enquiries via the Proper Officer to the claimant. The difficulty is they followed neither path.
90In my view the Statement of Reasons includes a failure to accord procedural fairness to the claimant in a way which was of real and practical effect.